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2002 DIGILAW 991 (AP)

N. Manorama v. Andhra Pradesh Wakf Board

2002-08-12

T.CH.SURYA RAO

body2002
JUDGMENT 1. The unsuccessful defendants in the suit have preferred the appeal against the judgment and decree dated 17.8.1989 passed by the learned Additional Chief Judge, City Civil Court, Hyderabad in OS No. 287 of 1984 (old suit OS No. 342 of 1977). 2. The sole respondent herein filed the suit for recovery of possession of the land measuring 2665 square yards and also for mandatory injunction to remove the wall and for perpetual injunction not to interfere with the land and for past mesne profits at Rs. 1000/- per month. The plaintiff is the Wakf Board represented by its Secretary. The case of the plaintiff was that the suit schedule mentioned property was endowed by one Jamsheed Khan the owner thereof under registered deed dated 7.10.1339 fasli for the purpose of construction of mosque. The said land endowed was duly entered in the books of endowments Ecclesiastical Department of the erstwhile Government of Andhra Pradesh and was published as endowed property in the Official Gazette dated 5.12.1234 Fasli and therefore it is a Wakf property. On 10.6.1977 the defendants commenced construction of compound wall illegally on the suit land and they also constructed walls of two rooms upto height of eight feet. The request of the plaintiff was not heeded to by the defendants and they continued the construction. Thus the defendants have illegally occupied an area of 2665 square yards of the suit land and therefore they are liable to be evicted therefrom. Hence the suit. 3. The suit was resisted by the defendants by filing written statement mentioning inter alia that the suit land belonged to one Mir Ibrahim Ali Khan and since there was crown grant made in his favour, which forms part of Narayanaguda Makhtha, the said Ali Khan was the makthadar. The said Ali Khan leased out the suit land to the defendants. Thus the defendants have been in continuous and uninterrupted possession and enjoyment of the said land. They erected huts on the suit land and have been paying the property tax, non-agricultural assessment tax etc., in respect of the suit land. When the said Mir Ibrahim Ali Khan tried to interfere with the possession of the defendants and tried to forcibly evict them they instituted civil suits against the said Ali Khan claiming reliefs of declaration and consequential injunction. All the suits were decreed ex-parte in favour of the defendants. When the said Mir Ibrahim Ali Khan tried to interfere with the possession of the defendants and tried to forcibly evict them they instituted civil suits against the said Ali Khan claiming reliefs of declaration and consequential injunction. All the suits were decreed ex-parte in favour of the defendants. The defendants intended to make permanent constructions over the suit land and therefore they applied for permission with the Municipal Corporation of Hyderabad and permission had already been granted to the defendants 1, 2, 3 and 5. Pursuant to the said permission they constructed rooms on their respective plots by demolishing the earlier huts. Since the permission applied by the fourth defendant was not rejected he is deemed to have been granted permission and therefore he too demolished his hut and constructed compound wall. After the abolition of the Inams the defendants have become statutory owners and occupants of the suit land. The suit land was not Wakf property and therefore the suit was liable to be dismissed. 4. Basing on the above pleadings the following issues were framed at the time of settlement of issues. 1. Whether the suit land was endowed by one Jamsheed Khan for the construction of mosque under the registered deed dated 7.10.1339 Fasli? 2. Whether the suit land was registered as the Wakf property in the book of endowments of the Wakf Board? 3. Whether the suit land was crown grant made in favour of Mir Ibrahim Ali Khan and whether it from part of S. No.58? 4. Whether Mir Ibrahim Ali Khan Makthadar leased out the suit land to the defendants and whether they were in continuous and uninterrupted possession of the suit land in their own right? 5. Whether the defendants have become the statutory owners and occupants of the suit land on the abolition of the Inams? 6. Whether the right and title of the defendants are confirmed in a civil suit instituted against Mir Ibrahim Ali Khan? 7. Whether the defendants obtained permission from the Municipal Corporation for construction of buildings in the suit land and whether they constructed rooms in the plots by demolishing earlier huts and also constructed a compound wall? 8. Whether the defendants are only trespassers and illegally occupied the suit land and constructed the building in spite of the protest of the plaintiff? 9. Whether Mir Ibrahim Ali Khan is also necessary party? 10. 8. Whether the defendants are only trespassers and illegally occupied the suit land and constructed the building in spite of the protest of the plaintiff? 9. Whether Mir Ibrahim Ali Khan is also necessary party? 10. Whether the plaintiff is entitled to mesne profits at the rate of Rs. 1000/- per month? 11. Whether the plaintiff is entitled to recovery of possession of the suit land? 12. To what relief the plaintiff is entitled? 5. At the time of the trial, four witnesses were examined on the side of the plaintiff and Exs.A1 to A32 were got marked. Two witnesses were examined on the side of the defendants and Exs.B1 to B47 were got marked. Exs.X1 and C1 to C13 were marked separately. Considering the evidence both oral and documentary on record and after having heard on either side, the learned Additional Chief Judge decreed the suit. As aforesaid, the defendants are now assailing the said judgment and decree. 6. On issue no. 2 the Court below found that the suit land was registered as Wakf property in the book of endowments. On issue no. 3 it was found that it was a crown grand made in favour of Mir Ibrahim Ali Khan but it was endowed to wakf property. On issue no. 8, it was found that all the defendants were trespassers and in illegal occupation of the suit land. On issue no. 10 the plea of mesne profits was negatived. 7. The learned Counsel for the appellants Sri R. Subhash Reddy, contends that there has been overwhelming evidence on record to show that it is a crown grant made in favour of Mir Ibrahim Ali Khan through whom the defendants have been claiming. The learned Counsel further contends that the suit land has not been registered in the books of endowments and no Gazette publication has been made in accordance with the provisions of Wakf Act 1954 and therefore the plaintiff shall be non-suited. 8. The learned Counsel for the respondent on the other hand contends that the property was registered in the book of endowments under the provisions of erstwhile Hyderabad Regulation and therefore it is deemed under law that the registration has been made under the Wakf Act 1954. 9. 8. The learned Counsel for the respondent on the other hand contends that the property was registered in the book of endowments under the provisions of erstwhile Hyderabad Regulation and therefore it is deemed under law that the registration has been made under the Wakf Act 1954. 9. Having regard to the respective contentions the point that arises for my determination in this appeal is whether the suit property is the Wakf property or not? 10. There is nothing much to appreciate the oral evidence on the point inasmuch as voluminous documentary evidence has been filed on either side. On all the documents filed on the side of the plaintiff Exs.A1, A2, A9, A19, A20, A21 are the material documents. On the side of the defendants Exs.B1, B2, B21 to B27 are the important documents. Ex.A1 is in Urdu language and the translation copy thereof has been filed into the Court below. However, this document has not been admitted nor brought on record. The Court below perused this translated copy in the process of delivering judgment. There is no gainsaying about the correctness or otherwise of this copy from the appellants. A perusal of this document shows that it is a Gazette of the Government dated 5th Aban 1343 Fasli (1934). In the remarks column it has been mentioned that the land which has been described in column no. 6 has been duly included in the book of endowments. The identity of the property as mentioned in this document can be seen as the suit schedule land. There is no dispute that the suit schedule property is squarely covered by this document. Furthermore in column no. 9 the name of the Wakf has been shown as late Jamsheed Khan and also Mir Ibrahim Ali Khan as successor of Makthadar Narayanaguda. The purpose of endowment has been shown in column no. 10 as for the construction of mosque. It is obvious therefore Ex.A1 Gazette shows that the suit schedule property is an endowed property having been duly entered in the book of endowments and Gazette publication in respect thereof has been made by the erstwhile Government in the State of Nizam. Ex.A2 is again in Urdu Language. Translated copy thereof has also been filed along with other documents. It is obvious therefore Ex.A1 Gazette shows that the suit schedule property is an endowed property having been duly entered in the book of endowments and Gazette publication in respect thereof has been made by the erstwhile Government in the State of Nizam. Ex.A2 is again in Urdu Language. Translated copy thereof has also been filed along with other documents. A perusal of the translated copy shows that late Mir Ibrahim Ali Khan, as Makthadar of Narayanaguda on 15.8.1953 addressed a letter to the Director of Ecclesiastical Department (Endowment Section) while raising some doubts inter alia in the petition. In page 2 in Para 4 it is stated in unmistakable terms that the author of this document has also affirmed the endowment through his letter. Ex.A20 is in Urdu and translated copy thereof has also been filed like other documents. A perusal of this document shows that it is Muntakhab of the year 1336 Fasli. Again this document shows that the names of the Wakf as late Jamsheed Khan and Mir Ibrahim Ali Khan. In remarks column no. 14 it has been mentioned that as per the orders of Hon'ble his Excellency Sadre Azam Bahadur the land shown in column no. 6 included in the book of Wakf. The Gazette number has also been mentioned as Government Gazette 1628. This document reinforces the contention of the plaintiff that it is the Wakf property. Ex.A21 is the document under which late Jamsheed Khan created the Wakf for charitable purposes of constructing a mosque. These documents are quite unimpeachable evidentiary value. As against these documents the appellant-defendants seek to rely upon Exs.B21 to B27 the judgments and decrees. Obviously they show that late Mir Ibrahim Ali Khan; the defendants and some others are parties thereto. But, the Wakf Board is not a party thereto. Therefore, the judgments and decrees will not bind the plaintiff respondent. However, undoubtedly they have the evidentiary value since the defendants are parties thereto and they can be considered as a piece of evidence like any other documents on the side of the defendants. But having regard to the fact that the property has been mentioned in books of endowments and has been duly published in the Official Gazette as endowed property creating thereby a Wakf for the purpose of constructing a mosque vest clearly in the Endowments Department. But having regard to the fact that the property has been mentioned in books of endowments and has been duly published in the Official Gazette as endowed property creating thereby a Wakf for the purpose of constructing a mosque vest clearly in the Endowments Department. It is appropriate here to refer to Section 6 of the Wakf Property 1954. The section may be extracted hereunder insofar as it is relevant to the present purpose. "6. Disputes regarding wakfs: – (1) If any question arises whether a particular property specified as wakf property in a list of wakfs published under sub-section (2) of Section 5 is wakf property or not or whether a wakf specified in such list is a Shia wakf or Suni wakf, the Board or the mutawalli of the wakf or any person interested therein may institute a suit in a civil court of competent jurisdiction for the decision of the question and the decision of the civil court in respect of such matter shall be final:– Provided that no suit shall be entertained by the civil Court, after the expiry of one year from the date of the publication of the list of wakfs under sub-section (2) of Section 5. Provided further that in the case of the list of wakfs relating to any part of the State and published or purporting to have been published before the commencement of the Wakf (Amendment) Act 1969 (38 of 1969) such suit may be entertained by the civil Court within the period of one year from such commencement. Explanation……….. Sub-section (2)……. Sub-section (3) Sub-section (4) the list of wakfs published under sub-section (2) of Section 5 shall unless it is modified in pursuance of a decision of the civil court under sub-section (1), be final and conclusive. Sub-section (5) on and from the commencement of the Wakf (Amendment) Act, 1984 in a State, no suit or other legal proceeding shall be instituted or commenced in a civil court in that State in relation to any question referred to in sub-section (1)." A perusal of the above provision shows that once the property has been mentioned in the books of Wakf published duly under sub-section (2) of Section 5 in the Official Gazette, the same becomes final provided it is not modified in pursuance of any decision of the civil court. Sub-section (5) further makes it clear that no suit or other legal proceeding should be initiated or commenced in relation to Wakf property. The period, of limitation has been engrafted under the two provisos under sub-section (1) of Section 6. Obviously that period has been clearly lapsed. Therefore, it cannot now be questioned in any Court of law. The learned Counsel for the appellants at this stage contends that Section 6 of the Act cannot now be relied upon inasmuch as the endowment is said to have been made far prior to the advent of the Wakf Act 1954. Section 30 is appropriate in this regard to be considered. Section 30 may be extracted hereunder thus:– "30. Savings: – Notwithstanding anything contained in this chapter, where any wakf has been registered before the commencement of this Act under any law for the time being in force, it shall not be necessary to register the wakf under the provisions of the Act and any such registration made before such commencement shall be deemed to be a registration made under this Act." A perusal of the said section shows that once the Wakf has been registered prior to the advent of this Act it shall not be necessary to register the Wakf under the provisions of the said Act and furthermore such registration made before the commencement of the Act shall be deemed to be registration made under this Act. Even within the period of limitation of one year after the advent of Wakf Act 1954 no suit has been filed by the defendant challenging the endowment in favour of the Wakf Board. Therefore the cause of the defendants that it is their property has been clearly barred by limitation and cannot be countenanced. The learned Counsel for the respondent in this regard seeks to place reliance on the judgment of the Apex Court in Sayyed Ali vs. Andhra Pradesh Wakf Board, Hyderabad, AIR 1998 SC 972 , at Page 977 in Para 14 it has been held thus:– "It may be stated that Wakf is a permanent dedication of property for purposes recognized by Muslim Law as pious, religious or charitable and the property having been found as Wakf would always retain its character as a Wakf. In other words once a Wakf always a Wakf and the grant of patta in favour of Mokshasadar under the Inam Act does not in any manner nullify the earlier dedication made of the property constituting the same as Wakf. After Wakf has been created, it continues to be so far all time to come and further continues to be governed by the provisions of the Wakf Act." 11. It is obvious therefore that once Wakf is always a Wakf. The property which has been duly published in the Gazette as the Wakf property remains forever to be a Wakf property, having regard to the authoritative pronouncement of the Apex Court referred to supra. In that view of the matter, even assuming for a moment that the appellants have been in possession of the property and they are entitled to patta under the provisions of the Inam Abolition Act still they cannot validly take their plea in respect of Wakf property. 12. For the foregoing reasons, I am of the considered view that there are no merits in the appeal and there is nothing to interfere with the judgment and decree of the trial Court. 13. In the result, the appeal fails and the appeal is dismissed. However, in the circumstances there shall be no order as to costs.